STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner,

vs.

FRAN'S FLOATING RIBS,

Respondent.

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) Case No. 05-4193

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RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this case on March 28, 2006, in Leesburg, Florida, before Ella Jane

P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether Respondent is guilty of violating National Fire Protection Rule 10, 4-4.1, Sections 509.039 and 509.049, Florida Statutes, and Florida Administrative Code Rule 61C-4.023(1) as

charged in the January 25, 2005, Administrative Complaint; and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

Respondent, Lorenzo Greene, timely requested a disputed- fact hearing, and the cause was referred to the Division of Administrative Hearings on or about November 18, 2005.

At the disputed-fact hearing on March 28, 2006, Petitioner presented the testimony of one witness, John Dancho, Sanitation and Safety Specialist, and had three exhibits admitted in evidence.

The Respondents made no appearance, but Lorenzo Greene's sister, G. Burgohy, was present and invited to participate. She declined to participate.

A Transcript was filed on April 14, 2006. Petitioner timely filed a Proposed Recommended Order, which has been considered during the drafting of this Recommended Order.

On May 9, 2006, Respondent, Lorenzo Greene filed a letter. By an Order entered May 18, 2006, that letter was treated as a motion to reopen the record and Petitioner was granted 10 days in which to file any response. Petitioner's response in opposition was filed on May 30, 2006. On June 9, 2006, an Order was entered, denying the request to reopen the record but permitting Respondent, Lorenzo Greene, until June 19, 2006, to file a proposed recommended order and granting Petitioner until

June 26, 2006, to file any rebuttal thereto by amending its previously filed Proposed Recommended Order. Respondent timely filed a Proposed Recommended Order, which has been considered during the drafting of this Recommended Order. Petitioner did not file any amended proposed recommended order.

Official recognition of various statutes and rules has been taken, pursuant to the terms announced on the record.

FINDINGS OF FACT

1. At all times material, Respondents, Lorenzo and Francenia Greene, held a 2014 license for "Fran's Floating Ribs" at North Market Street, in Webster, Florida, having been issued license numbr 7050128. Such licenses are issued and regulated by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Agency).

2. At all times material, Respondent's address was 524 North Market Street, Webster, Florida 33597. However, it appeared at hearing that the property and/or business has been sold since the Administrative Complaint was filed.

3. At all times material, John Dancho was employed by the Agency as a Sanitation and Safety Specialist. Mr. Dancho has been an inspector for five years. Prior to that, he worked for a restaurant chain called the "Victoria Station Restaurants" for

   11 years. Mr. Dancho has earned an AAS degree in hotel/restaurant management from Paul Smith College and a B.S.

   in hotel/restaurant management from Florida International University. When Mr. Dancho joined the Agency he was formally trained and standardized in the rules and laws regulating public lodging and food service. Additionally, Mr. Dancho has completed ongoing continuing education training for food service, lodging, and fire certification. Mr. Dancho conducts between 600 to 900 inspections for the Agency each year.

4. On October 25, 2004, Mr. Dancho inspected the premises of Fran's Floating Ribs Restaurant. During the inspection,

   Mr. Dancho prepared a Food Service Inspection Report setting forth his findings.

5. On that date, Mr. Dancho had observed that there was no proof on the premises of food manager certification and no proof of employee training done by the food manager. He also observed a fire extinguisher with a tag that was out-of-date. He further observed problems with the hot and cold water at the employee hand washing sink and that a light shield was missing from the lights inside the unit. Mr. Dancho informed Respondent, Lorenzo Greene, that the fire extinguisher violation needed correction by November 8, 2004; that the food manager's certification and employee training needed correction by November 25, 2004; and that Respondent had until the next routine inspection to correct the other violations.

6. On January 10, 2005, Mr. Dancho re-inspected Fran's Floating Ribs Restaurant. During his inspection, Mr. Dancho prepared a Call Back/Re-inspection Report, setting forth his findings from the re-inspection.

7. On January 10, 2005, Mr. Dancho observed that some of the violations that were in the warning status from the previous inspection, October 25, 2004, had been corrected, but that other violations had not yet been corrected. The hot water at the hand washing sink and the light shield had been corrected. However, Mr. Dancho observed that the following violations had not been corrected: lack of food manager certification on site; lack of employee training on site; portable extinguisher with an out-of-date tag; and no cold water at the hand washing sink.

8. A critical violation is a violation of the utmost importance which needs immediate correction.

9. A non-critical violation is a violation that is not a critical violation, but one that needs to be corrected over an acceptable period of time, usually thirty (30) days or three (3) months.

10. Mr. Dancho testified that lack of proof of food manager certification is a critical violation, because a food manager must be able to ensure the proper operation, safety and sanitation of the unit. He also must be able to train employees

    in the proper handling of food procedures, and in sanitation and safety of the unit.

11. On January 10, 2005, Mr. Dancho also observed that there was no proof on site of employee training by the certified food manager. Because the food manager is responsible for everything that goes on in the unit and the employees need to have the knowledge required for proper food handling and sanitation techniques, this, too, was a critical violation.

12. On January 10, 2005, Mr. Dancho also observed a portable fire extinguisher with an out-of-date tag. He testified that this, too, was a critical violation. The Florida Fire Code requires fire extinguishers to be checked annually by a registered or certified technician to ensure that they are functional and will work, if needed. Without an up-to-date tag, it may be logically assumed that the fire extinguisher on the subject property had not been inspected within the current annual cycle.

13. Apparently, Respondent's sister, G. Burgohy, was in charge of the premises and signed as receiving the call-back/re- inspection form from Mr. Dancho. (P-3.)

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2005).

15. Petitioner has jurisdiction over the operation of public lodging establishments and public food service establishments, pursuant to Section 20.165 and Chapter 509, Florida Statutes.

16. The Administrative Complaint charged Respondent with violations of the following:

    1. National Fire Protection Association 10, 4-4.1 (2002), which states that:

       
       

       Extinguishers shall be subjected to maintenance, not more than one year apart.

       
       

    2. Section 509.039, Florida Statutes (2004), which states that:

       
       

       Food service manager certification - It is the duty of the division to adopt, by rule, food safety protection standards for the training and certification of all food service managers who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. The standards adopted by the division shall be consistent with the Standards for Accreditation of Food Protection Manager Certification Programs adopted by the Conference for Food Protection. These standards are to be adopted by the division to ensure that, upon successfully passing a test, approved by the Conference for Food Protection, a manager of a food service establishment shall have demonstrated a knowledge of basic food protection practices. The division may contract with an organization offering a training and certification program that complies with division standards and results in a certification recognized by the Conference for Food Protection to conduct an approved test and certify all test results to the division. Other organizations

       offering programs that meet the same requirements may also conduct approved tests and certify all test results to the division. The division may charge the organization it contracts with a fee of not more than $5 per certified test to cover the administrative costs of the division for the food service manager training and certification program. All managers employed by a food service establishment must have passed an approved test and received a certificate attesting thereto.

       Managers have a period of 90 days after employment to pass the required test. The ranking of food service establishments is also preempted to the state; provided, however, that any local ordinances establishing a ranking system in existence prior to October 1, 1998, may remain in effect.

       
       

    3. Chapter 61C-4.023(1), Florida Administrative Code (2004), which states that:

       
       

       Food Protection Manager Certification and Public Food Service Employee Training. (1) All managers who are responsible for the storage, preparation, display, and serving of foods to the public shall have passed a certification test approved by the division demonstrating a basic knowledge of food protection practices as adopted in this chapter. Those managers who successfully pass an approved certification examination shall be issued a certificate by the certifying organization, which is valid for a period of five years from the date of issuance. Each licensed establishment shall have a minimum of one certified food protection manager responsible for all periods of operation. The operator shall designate in writing the certified food protection manager or managers for each location. A current list of certified food protection managers shall be available upon request in each establishment. When four or

       more employees, at one time, are engaged in the storage, preparation or serving of food in a licensed establishment, there shall be at least one certified food protection manager present at all times when said activities are taking place. The certified food protection manager or managers need not be present in the establishment during those periods of operation when there are three or fewer employees engaged in the storage, preparation, or serving of food. It shall be the responsibility of the certified food protection manager or managers to inform all employees under their supervision and control who engage in the storage, preparation, or serving of food, to do so in accordance with acceptable sanitary practices as described in this chapter.

       
       

    4. Section 509.049, Florida Statutes (2004), which states that:

       
       

       Food service employee training.

       
       

       1. The division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. These standards shall not include an examination, but shall provide for a food safety training certificate program for food service employees to be administered by a private nonprofit provider chosen by the division.

          
          

       2. The division shall issue a request for competitive sealed proposals which includes a statement of the contractual services sought and all terms and conditions applicable to the contract. The division shall award the contract to the provider whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for

          proposals. The division shall contract with a provider on a 4-year basis and is authorized to promulgate by rule a per employee fee to cover the contracted price for the program administered by the provider. In making its selection, the division shall consider factors including, but not limited to, the experience and history of the provider in representing the food service industry, the provider's demonstrated commitment to food safety, and its ability to provide a statewide program with industry support and participation.

          
          

       3. Any food safety training program established and administered to food service employees utilized at a licensed public food service establishment prior to July 1, 2000, shall be submitted by the operator or the third-party provider to the division for its review and approval on or before

          September 1, 2004. If the food safety training program is found to be in substantial compliance with the division's required criteria and is approved by the division, nothing in this section shall preclude any other operator of a food service establishment from also utilizing the approved program or require the employees of any operator to receive training from or pay a fee to the division's contracted provider. Review and approval by the division of a program or programs under this section shall include, but need not be limited to, verification that the licensed public food service establishment utilized the program prior to July 1, 2000, and the minimum food safety standards adopted by the division in accordance with this section.

          
          

       4. Approval of a program is subject to the provider's continued compliance with the division's minimum program standards. The division may conduct random audits of any approved program to determine compliance and may audit any program if it has reason to believe a program is not in compliance with

          this section. The division may revoke a program's approval if it finds a program is not in compliance with this section or the rules adopted under this section.

          
          

       5. It shall be the duty of each public food service establishment to provide training in accordance with the described rule to all food service employees of the public food service establishment. The public food service establishment may designate any certified food service manager to perform this function. Food service employees must receive certification within

       60 days after employment. Certification pursuant to this section shall remain valid for 3 years. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. Proof of training for each food service employee shall include the name of the trained employee, the date of birth of the trained employee, the date the training occurred, and the approved food safety training program used.

       
       

       (6)(a) Third-party providers shall issue to a public food service establishment an original certificate for each employee certified by the provider and an original card to be provided to each certified employee. Such card or certificate shall be produced by the certified food service employee or by the public food service establishment, respectively, in its duly issued original form upon request of the division.

       
       

       (6)(b) Effective January 1, 2005, each third-party provider shall provide the following information on each employee upon certification and recertification: the name of the certified food service employee, the employee's date of birth, the employing food service establishment, the name of the

       certified food manager who conducted the training, the training date, and the certification expiration date. This information shall be reported electronically to the division, in a format prescribed by the division within 30 days of certification or recertification. The division shall compile the information into an electronic database that is not directly or indirectly owned, maintained, or installed by any nongovernmental provider of food service training. A public food service establishment that trains its employees using its own in-house, proprietary food safety training program approved by the division, and which uses it own employees to provide this training, shall be exempt from the electronic reporting requirements of this paragraph, and from the card or certificate requirement of paragraph (a).

       
       

       1. The division may adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to administer this section. The rules may require:

          
          

          1. The use of application forms, which may require, but need not be limited to, the identification of training components of the program and an applicant affidavit attesting to the accuracy of the information provided in the application;

             
             

          2. Third-party providers to maintain and electronically submit information concerning establishments where they provide training or training programs pursuant to this section;

          3. Specific subject matter related to food safety for use in training program components; and

             
             

          4. The public food service establishment to be responsible for providing proof of employee training pursuant to this section, and the division may request production of

             such proof upon inspection of the establishment.

             
             

       2. The following are violations for which the division may impose administrative fine of up to $1,000 on a public food service establishment, or suspend or revoke the approval of a particular provider's use of a food safety training program:

          
          

          1. Failure of a public food service establishment to provide proof of training pursuant to subsection (5) upon request by the division or an original certificate to the division when required pursuant to paragraph (6)(a).

             
             

          2. Failure of a third-party provider to submit required records pursuant to paragraph (6)(b) or to provide original certificates or cards to a public food service establishment or employee pursuant to paragraph (6)(a).

             
             

          3. Participating in falsifying any training record.

             
             

          4. Failure of the program to maintain the division's minimum program standards.

       
       

17. Herein, Petitioner has the duty to go forward and the burden of proving by clear and convincing evidence, the allegations against Respondent. Department of Banking and

    Finance Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). The case of Evans Packing, 550 So. 2d at 116, fn. 5, provides the following, pertinent to the clear and convincing evidence standard:

    That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be

    credible; the facts to which the witnesses testify must be distinctly remembered, the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.

    2d 797, 800 (Fla. 4th DCA 1983).

    
    

18. In addition, the disciplinary action may only be based upon the offenses specifically alleged in the Administrative Complaint. See Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2nd DCA 1984).

19. Section 509.261(1), Florida Statutes, provides that any public lodging establishment or public food service establishment that has operated or is operating in violation of Chapter 509, or the rules promulgated thereunder, is subject to fines not to exceed $1,000.00 per offense; mandatory attendance at an educational program sponsored by the Hospitality Education Program; and the suspension, revocation or refusal of a license.

20. Section 509.032(6), Florida Statutes, provides that the division shall adopt such rules as are necessary to carry out the provisions of this chapter.

21. Petitioner proved by clear and convincing evidence that Respondent violated National Fire Protection Association 10, 4-4.1 (2002), by failing to have fire extinguishers checked annually by a registered or certified technician.

22. Petitioner proved by clear and convincing evidence that Respondent violated Section 509.039, Florida Statutes (2004), by failing to have proof of a food service manager certification.

23. Petitioner proved by clear and convincing evidence that Respondent violated Chapter 61C-4.023(1), Florida Administrative Code (2004), by failing to have proof of food protection manager certification and public food service employee training.

24. Petitioner proved by clear and convincing evidence that Respondent violated Section 509.049, Florida Statutes (2004), by failing to have proof of food service employee training.

25. The foregoing violations constitute three critical violations, not four, and Petitioner's prayer for a $1,500.00 fine and attendance at an educational program due to the foregoing omissions is excessive under the circumstances.

26. The additional proven failure to provide cold water in the employee handwashing sink was not a critical violation.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order as follows:

1. Requiring Respondent to pay an administrative penalty in the amount of $500.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date this Order is filed with the Agency clerk, and

2. Further, Respondent shall attend an educational program sponsored by the Hospitality Education Program.

DONE AND ENTERED this 7th day of July, 2006, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2006.

COPIES FURNISHED:

Jessica Leigh, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Suite 42

Tallahassee, Florida 32399-2202

Geneva Burgohy

557 Northwest 3rd Street Webster, Florida 33597

Lorenzo Greene Fran's Floating Ribs

12 Berry Court

Mascotte, Florida 34753

George Luebkemann, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 05-004193

Orders for Case No: 05-004193